Dr. William Tam’s Understanding of “The Gay Agenda” and Vaughn Walker’s Prop 8 Decision

There was a fair amount of attention to Vaughn Walker’s scathing dismissal of professional anti-gay “scholar” David Blankenhorn’s testimony in the Prop 8 trial.

The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.

But I’ve seen little commentary on the fate to which Walker consigned Dr. William Tam’s deposition, even though Tam’s deposition provided an equally important part of Walker’s ruling.

As you recall, along with all but a few of the Defendant Intervenors’ witnesses, Dr. Tam, whom the Prop 8 campaign had used as a key interlocutor with California’s Asian-American voters, asked to withdraw as an official proponent of Prop 8 just before the trial began in January. He gave the same excuse as the “expert” witnesses had–a fear for his safety. But, as with those witnesses who ended up withdrawing, it is just as likely the D-I team realized that Dr. Tam’s deposition and public writings absolutely demolished the D-I claim to be motivated out of a desire to protect procreative marriage and not out of ignorant, bigoted fear.

In his ruling, Walker noted that he had rejected Tam’s request to withdraw.

On January 8, 2010, Hak-Shing William Tam, an official proponent and defendant-intervenor, moved to withdraw as a defendant, Doc #369; Tam’s motion is denied for the reasons stated in a separate order filed herewith.

And in a ruling accompanying his larger ruling, Walker denied Tam’s request as moot.

On January 8, 2010, Hak-Shing William Tam, a defendant-intervenor, moved to withdraw as a defendant. Doc #369. Tam seeks to withdraw because: (1) he fears for his personal safety; (2) he does not wish to comply with discovery burdens; and (3) he does not want to spend his time defending this case. Id.

In his motion, Tam fails to identify a procedure through which he can withdraw as a defendant prior to entry of final judgment against him. Nevertheless, Tam’s burdens as a defendant will be complete upon entry of final judgment. Tam’s motion to withdraw accordingly is DENIED AS MOOT.

In other words, Walker justified his delay in ruling on Tam’s motion for procedural reasons, and then mooted the request given that the trial is over and Tam’s desires to withdraw are no longer valid.

Partly as a result, that means that Walker was able to make Dr. Tam’s deposition–which had been entered by the plaintiffs–publicly available as evidence, as well as cite his statements at length in his ruling. In doing so, Walker gave his argument that Prop 8 was an attempt to require the state to enforce private moral and religious beliefs a human face (and much more textual evidence).

In addition to the ballot arguments, the Proposition 8 campaign presented to the voters of California a multitude of television, radio and internet-based advertisements and messages. The advertisements conveyed to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children.

[click through for Walker’s list, which appears on PDF 9-10]

A state’s interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose. See Lawrence v Texas, 539 US 558, 571 (2003); see also Everson v Board of Education of Ewing Township, 330 US 1, 15 (1947).

Of particular import, Walker cited a flier Tam wrote (and spoke about in the above video starting at 9:03) making a slippery slope argument that same-sex marriage will ultimately lead to churches being forced to marry gays and lesbians.

Letter from Tam to “friends”: “This November, San Francisco voters will vote on a ballot to ‘legalize prostitution.’ This is put forth by the SF city government, which is under the rule of homosexuals. They lose no time in pushing the gay agenda —— after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children * * * We can’t lose this critical battle. If we lose, this will very likely happen * * * 1. Same-Sex marriage will be a permanent law in California. One by one, other states would fall into Satan’s hand. 2. Every child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals. Even if our children is safe, our grandchildren may not. What about our children’s grandchildren? 3. Gay activists would target the big churches and request to be married by their pastors. If the church refuse, they would sue the church.” [my emphasis]

Not to mention Tam’s claim that “the Gay Agenda”–which he says he learned about on the Internet (yet refused in his deposition to say whether he believed was true or not)–wants to legalize sex with children.

Dr. Tam’s worries about children fantasizing and wondering about marrying “John or Jane” are a key support for Walker’s assertion that the Prop 8 campaign mobilized fears about children coming out as gay or lesbian (13:20 in the video).

The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.

As with Dr. Tam’s “Jane or John” quote here.

Tam: Tam supported Proposition 8 because he thinks “it is very important that our children won’t grow up to fantasize or think about, Should I marry Jane or John when I grow up? Because this is very important for Asian families, the cultural issues, the stability of the family.”

Dr. Tam deposition, then, provided Walker a way to carry the claims made during the Prop 8 campaign but then actively suppressed and denied in his courtroom into the ruling against Prop 8.

Finally, for good measure, Walker used Tam’s testimony as a way to show that Prop 8’s supporters agreed with key claims made by the plaintiffs. For example, he used Tam’s deposition to support his finding of fact that civil unions were not equivalent to marriage…

Tam: “If ‘domestic partner’ is defined as it is now, then we can explain to our children that, yeah, there are some same-sex person wants to have a lifetime together as committed partners, and that is called ‘domestic partner,’ but it is not ‘marriage.’”

And Walker cited Dr. Tam’s deposition in his finding of fact that allowing same-sex couples to marry would be a significant benefit for their children.

Tam: It is important to children of same-sex couples that their parents be able to marry.

Finally, Walker used correspondence with Tam to show how Protect Marriage ran the campaign.

Tam’s deposition–now legally available on YouTube–by all rights should be a huge embarrassment for the Prop 8 crowd. But as it turns out, it served as key evidence in some of the key logical steps in Walker’s argument.

Which, I guess, is why Tam wanted to withdraw.

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  1. scribe says:

    More importantly, EW, the Rules of Civil Procedure make a subtle but vast distinction in how a deposition may be used, depending on whether the deponent (the guy testifying) is a party or a non-party. In Rule 32, it states:

    [full text of the relevant paragraphs]

    (a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

    (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Federal Rules of Evidence.

    (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30 (b)(6) or 31 (a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.

    Thus, under (a)(1), the deposition of a non-party witness may be used to contradict or impeach the testimony of the deponent (or of another witness) as a witness. But since Tam wanted to avoid the burden of testifying at all, had he been granted the privilege of getting out of the case and then dodged the subpoena to testify at trial, his deposition testimony would have been well-nigh useless because he would have avoided testifying and could not have been cross-examined about it. Similarly, it would have been of little utility to the plaintiffs to use it to cross-examine or impeach or contradict any of the plaintiffs’ witnesses.

    But look at how Rule 32(a)(2) works. I will simplify its text by excising language extraneous to this situation:

    (a) Use of Depositions. At the trial …, any part or all of a deposition, …, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

    (1) * * *

    (2) The deposition of a party …may be used by an adverse party for any purpose.

    So, Boies and Olson could just let the deposition tape run every time Tam came up short in his trial testimony or contradicted himself even slightly.

    There’s a fairness provision further along in the rule, which basically says that you have to be fair and more or less not-intellectually-dishonest in your use of the deposition by including parts that make the picture whole. But, you still can use the deposition of an adverse party for any purpose.

    Not “any legitimate purpose” or “any fair purpose”. “Any” purpose.

    Which is why we get to see his deposition, too.

    • emptywheel says:

      They did fight pretty hard about admitting this, based on a claim that he wasn’t central to the case. Didn’t go very far.

      That said, I think having Tam as a representative of the campaign still makes the use of this stronger, as the defendants were trying to segment out their more embarrassing team members (and hide their ties w/organized religion).

  2. cregan says:

    More basic and interesting, is that you outline that Walker has no problem with the state having a law based on private moral or religious beliefs–as long as it has some accompanying secular purpose.

    This is different from a number of posts I saw the past few days saying no law can be based on private morals.

    One example of a private moral belief would be the religious commandment, “Thou shalt not steal.”

    The fact it a private moral belief of many and also happens to be a religious commandment, does not mean that no laws against theft should be passed. The fact they are moral, religious or otherwise has no importance.

    Really, he is only saying a law must make sense. Nonsense laws based on science would also be precluded.

    Oh, no laws based on science could be nonsense?? How about this one based on Darwin. “It is a scientific fact that breeding of weaker and less able members of a species will yield ever weaker offspring and weaken the race. Therefore, no humans may have children who do not have the traits determined to be in the upper half of strength and ability.”

    Perfectly logical, based on science, and utterly nonsense.

      • cregan says:

        I was thinking the same about progressives. Or, actually, their base supporters. The leaders are those “best and brightest” types.

        Goshing, of course.

    • hijean831 says:

      the religious commandment, “Thou shalt not steal.”

      is just an early example of religion coopting and claiming ownership.

  3. Peterr says:

    Walker’s recitation of his Findings of Fact was absolutely brutal. Talk about “hoist on your own petard” . . .

    Bmaz or other members of the EW Bar Association: Appellate judges will often tell a trial judge “You misapplied the law,” but how often do you see an appellate court say to a trial judge, “You misread the facts”?

    • bmaz says:

      The standard is that “great deference” must be given to the trial judges findings of fact and determination of credibility of witnesses because only the trial judge had the full opportunity to gauge the witness optimally and fully.

    • Cellar47 says:

      It is indeed. This ruling is built like the proverbial brick shit-house. It is not tobe easily dismissed.

      In order to overturn it each and every “Finding of Fact” must be dealt with and answered in kind.

      IOW 80 Masters Theses.

      • bmaz says:

        Walker knew and understood exactly what was in front of his opinion/verdict in this case. Everything he has done has been structured to withstand appeal and make it as hard as possible to touch his opinion. And Walker is VERY smart and crafty. The 9th won’t touch it I don’t think. If Roberts and the Supremes are going to, they are going to reveal themselves as the dogmatic throwback bigots they are because of the way Walker set it up. Roberts, and even Scalia, may be harder pressed to leave that legacy than people think. And Walker framed his opinion right into the heart of Kennedy’s wheelhouse and already stated positions and views. This thing is a LOT more solid than people realize. A freaking work of art.

      • Phoenix Woman says:

        And there is no way in hell that Roberts et al could do that. None.

        Wow, and I thought the beat-down administered to Norm Coleman last year was brutal and thorough. This almost makes that look like a slap on the wrist.

    • scribe says:

      Occasionally it does happen.

      I had it happen once in a case where I had second-chaired the plaintiff’s side in a fraud/legal malpractice trial conducted without a jury and we’d won a judgment in our favor. On appeal, the appealing defense counsel opened the oral argument by noting the identity of the trial judge and playing on a decades-long personal animosity between that particular trial judge and the lead judge of the appellate panel, as well as on the reputation of plaintiff’s trial counsel (who’d died in the interim and therefore was not there to defend himself) for taking unwinnable cases and winning them through sheer force of will, personality, intellect and persuasion. His argument was basically that plaintiff’s counsel had led the trial judge into fantasyland and, well, you know how judge so-and-so is, your honor.

      Unfortunately, the Rules of Court preclude decking adversary counsel and even precluded me from arguing “I thought we were here to argue about alleged errors in the trial and not rehash personal vendettas and intra-judiciary bitchiness.”, even though these would have been both accurate and arguably appropriate under the circumstances.

  4. BoxTurtle says:

    The d-i’s still haven’t filed their appeal. I can’t wait to read that.

    Boxturtle (There may be a procedural issue, as federal courts don’t accept filings written in crayon)

      • BoxTurtle says:

        Oo! Anybody got the text of the appeal? I can’t find it.

        Boxturtle (Or is there a difference between filed and offically noticed?)

          • BoxTurtle says:

            Yeah, seen that. I’m waiting for them to specify their grounds for appeal.

            Do they go with the bullcrap “the voters spoke” argument, judicial error, or do they say that Walker so misunderstood te law, he should be removed for Altzheimers?

            Boxturtle (Or do they go with “gays are icky” and count on the supremes?)

      • BoxTurtle says:

        Yup. But they’re on pacific time. So they still got a few hours.

        Boxturtle (They should be well prepared, as they looked like they knew they lost in January)

        • ducktree says:

          It is mandatory that filings with the 9th Circuit be done electronically (“e-filing”), and it could be filed at the last possible minute. Could be as late as 11:59 p.m. tonight, I believe. Patience, Grasshopper, er . . . Boxturtle. (:>

  5. bobschacht says:

    Pretty neat trick– Walker using one of their own witnesses to skewer their case. And denying his request for withdrawal so that he could use the crappy testimony against the proponents of Prop8.

    Its nice to know that we still have some judges left who haven’t been absorbed by The Borg.

    Bob in AZ

    • bmaz says:

      A defendant has no right to, and there is no mechanism for, withdrawal. They can leave by dismissal with consent of the Plaintiff or by order of the court, or they can be terminated by judgment, whether default, summary or trial verdict based. That is it. This whiny ass bigoted prick was not capable of withdrawing in the first place.

      • Kelly Canfield says:

        Well, isn’t it the whole point of these @sshats that they think they can waive their own liability because they have a “belief?”

        Like beliefs are some “magic badge” that shields them from the consequences of their actions.

        Phooey on that.

        • Mauimom says:

          Like beliefs are some “magic badge” that shields them from the consequences of their actions.

          Available in the bin right next to the one containing the “magic underwear.”

        • PJEvans says:

          Haven’t you seen them driving down the street, with their doves and crosses and whatnots all over their vehicles, and no clue that things like speed limits actually apply to them?

    • cwardnm says:

      bob in Arizona said…Its nice to know that we still have some judges left who haven’t been absorbed by The Borg.

      This judge is gay…so he’s been absorbed by gay borg.

      When I read these responses I am shocked by the intellectual dishonesty surrounding this subject.

      I have loads of gay friends… I’ve been at their Thanksgiving dinners, baptisms and vacationing.

      DO NOT TELL me that the new acceptance won’t lead to men hitting on younger and younger boys. Straight men like young girls just like gay men like young boys.

      I don’t like predatory sexual practices – gay or straight.

      But I’ve been around the gay lifestyle long enough to know the Doo Day parade juvenile behavior can only flourish under the new morality.

      Is there anything more predatory than an aging queen in a Long Beach gay bar? Acceptance becomes license – so I fear for our sons.

        • PJEvans says:

          This troll hit the other thread too, and got the same kind of response.
          It’s sad when some people can’t see others as real humans unless they agree on everything.

    • Twain says:

      Jerry knows where to be on this issue with the Nov election approaching and eMeg on the other side. Good for him. BTW, eMeg has spent 99million !

      • EvilDrPuma says:

        BTW, eMeg has spent 99million !

        If she were male, I’d estimate her at about half an inch and compensating like mad.

        • tjallen says:

          Please, can FireDogLake be and remain a penis-size-joke-free zone? At bottom, it is just another bigoted, laugh-at-physical-disability joke, hypocritical and is unworthy of these pages.

          It seems that we are learning the particulars, like no jokes about skin color and no quadriplegic jokes, yet people still make penis-size jokes? Please, learn the general rule that all these jokes about things the person cannot help, are morally equivalent, and wrong.

          It is easy enough to say, Meg is overcompensating with money for her lack of name recognition, or bad policies, and what is added by first giving this woman an imaginary penis, then laughing that it is too small? Jeez, grow up.

          • tjallen says:

            Further, while I’m on this rant, how do you know what shorter-penised men think and act like? To say that shorter-penised men ALL overcompensate by acting big, or spending big, is the same type of imaginary stereotype as that all gay men are sissies, flaming fairies, and want young boys. By definition, half of all men have shorter penises, and some overcompensate, and some do not. The joke above depends on a crude stereotype that all shorter-penised men act alike – no better than jokes based on racism, sexism, physical deformity or any other form of bigotry.

  6. onitgoes says:

    Thanks for this; it’s both interesting and, uh, highly entertaining.

    Dr. Tam is entitled to his opinion,of course, but the issue these days seems to be that some citizens wish to foist their opinions, whether based on anything factual or logical or legal, onto everyone else.

    It’s noteworthy that the Judge was able to use this to deconstruct Dr. Tam’s arguments, which is basically just Dr. Tam fearfully imagining the worst and then multiplying it by ten. What a load of boogeymen Dr. Tam seems to carry around on his shoulders. That said, why should I be ruled by Dr. Tan’s boogeymen, if, in fact, there is no logical or legal reason for me to be so??

    And that’s it. Why did these people think Prop H8te could stand? Because they’ve become so accustomed to believing that they – and only they – are correct, and that their rigidly correct lifestyles, choices, rules, etc are commanded by their concept of “God” to be enforced on everyone no matter what.

    Many citizens have really lost sight of the fact that there is more than one way to lead one’s life without running afoul of the law, and that’s really all that matters.

    • cregan says:

      You are right on except for the scope of your post. What you say applies to more people than those with one view.

      I’ve seen lots of people with “beliefs” who want to force their views and ideas of the “right way to act” on the rest of the population. In fact, the exception to that is rare. They are constantly attempting to pass laws that force everyone else to have to swim in their pool.

      As I have said, I agree with the decision and I am pretty certain it will be upheld.

      But, how certain are you that you and only you and your friends are correct that gay marriage is a good thing? I’d say you are absolutely convinced of it and would not entertain any possibility you didn’t have the correct opinion. So convinced that you likely believe there is no other opinion possible.

      You believe that is based on some absolute truth and that only one such truth exists. And that truth is based on what? Let’s say even some scientific irrefutable evidence–which we know doesn’t exist as the science is still evolving–that being gay was biological and all the rest. The idea of whether it was good or not or any action related to it was good or bad is still an opinion. A judgment.

      I think people ought to be free to marry who they want. But, I also think you ought to attempt to consider that the other side feels that your side is forcing a view onto them. And, I am certain you support laws that attempt to get your views applied to others who don’t agree with those views.

      But, then, you are one of those people in possession of the absolute truth and none of what you think is based on anything but the correct, absolute rightness of things.

  7. rosalind says:

    ot: Afghan girl featured in Time magazine arrives in L.A.

    An Afghan girl featured on the cover of Time magazine last month after her nose was cut off arrived in the Southland this week for treatment by local doctors…Dr. Peter H. Grossman, co-director of the Grossman Burn Centers based in Sherman Oaks, said his wife, Rebecca Grossman, who chairs the Calabasas-based Grossman Burn Foundation, saw Aisha on television and knew they could help her.

  8. Kelly Canfield says:

    Tam, in response to a question about his statement including “…have very cleverly portrayed homosexuals as a minority, they’ve been very effective at portraying it as a civil rights issue” Question begins at about 20:30 in the youtube:

    [paraphrase]…Civil rights is about skin color…like me being an Asian. I cannot change it. That’s how I understand it. …If Homosexuals portray as another minority, then sexual preference can become a minority. That to me is a concern.

    Those damn choices!

    • EvilDrPuma says:

      Guess he doesn’t think women’s suffrage was a civil rights issue, either. Where did Tam get his degree, anyway–Coney Island College? (Go Whitefish!)

  9. Mauimom says:

    Slightly OT: I urge everyone reading this brilliant piece by EW to donate NOW to the Marcy Fund. I’m embarrassed every time I return here and see the amount stuck at what it was a week or month ago. I wish I had the means to make it reach $150K, but I don’t, so I hope everyone will donate what they can.